[2020] KEHC 3152 (KLR)

REPUBLIC OF KENNYA

IN THE HIGH COURT OF KENYA AT SIAYA

CRIMINAL APPEAL NO.3 OF 2020

CORAM: HON. R.E. ABURILI J

GEORGE OMULLO TINGIA..................................................APPELLANT

VERSUS

REPUBLIC...............................................................................RESPONDENT

(An appeal from original conviction and sentence of Bondo PM Criminal Case No. 1110 of 2019 by Hon. S.W. Mathenge, SRM dated 24th December 2019)

JUDGMENT

1. The appellant herein GERORGE OMULLO TINGIA was charged with the offence of Burglary contrary to section 304 (2) and stealing contrary to section 279(6) of the Penal Code. Particulars of the offence are that on the night of 22nd December, 2019 at unknown time, at Ajigo Market Ajigo Sub location in Bondo sub county within Siaya County broke and entered into a dwelling house of Berley Akoth Obiero with intent to steal therein and did steal from there in one bag containing assorted clothes, personal documents, one national identity card, cash Kshs 1,180, one pair shoes the property of Berley Akoth Obiero items being of the value of Kshs 5000.

2. The appellant also faced the alternative count of handling stolen goods contrary to section 322(1 of the Penal Code. The particulars are that on the 22nd day of December 2019 at around 1450 hours at Ajigo market Ajigo sub location in Bondo Sub county within Siaya County, otherwise than in the course of stealing retained one bag containing assorted clothes, one pair shoes and personal documents all valued at Kshs 3,000 the property of Berley Akoth Obiero knowing or having reason to believe that it was stolen goods.

3. The appellant was arraigned on 24/12/2019 before Hon S.W. Mathenge, Resident Magistrate and upon the charge and particulars thereof being read out to him by the court in the English language, he pleaded guilty to the main count of burglary and stealing and he was convicted accordingly. The prosecution then stated that they had no records and the court accorded the appellant an opportunity to mitigate. In mitigation, the appellant prayed for forgiveness and stated that he was supposed to go to school. He prayed for non-custodial sentence.

4. The trial magistrate then sentenced the appellant to serve 2 years imprisonment on the charge of stealing and two years’ imprisonment on the charge pf burglary, sentences to run concurrently.

5. Aggrieved by the said conviction and sentence, the appellant despite delaying to file an appeal within the statutory stipulated period of 14 days he applied before this court vide Miscellaneous Criminal Application No 3 of 2020 for extension of time and by a ruling delivered on 27th January 2020 this court granted the appellant leave to file an appeal within 14 days of even date hence this appeal.

6. The Petition of Appeal is dated 6th February 2020 accompanied by written submissions. In the said petition of appeal, the appellant sets out 9 grounds of appeal which basically challenge the charge facing the appellant on the ground that the facts as read out to the appellant did not disclose any offence for burglary, that the plea of guilty as recorded by the trial court was equivocal. That the charge was not read in the language understood by the appellant, that the trial court did not explain to the appellant the gravity of the offence and the consequences thereof and that the sentence imposed on the appellant was unduly harsh and manifestly excessive in the circumstances.

7. The appellant therefore urged this court to allow the appeal, quash the conviction and set aside the sentence imposed on the appellant and set him at liberty.

SUBMISSIONS

8. In support of the grounds of appeal, the appellant’s counsel Ms Anyango Owino filed written reiterating that the plea was equivocal and cited section 207 of the Criminal Procedure Code on how a plea of guilty should be recorded by the trial magistrate. Counsel also cited the cases of Adan V Republic [1973] EA 445 and Kariuki v Republic [1984] KLR 809the locus classicus cases on how an unequivocal plea of guilty should be taken by the trial court.

9. Counsel for the appellant submitted that in the instant appeal, even though the interpreter was present in court, interpretation services were not accorded to the appellant and that the facts readout to the appellant omitted the element of time which is an essential ingredient of the offence of burglary which must have been committed at night. That the facts as read out to the accused/appellant speak to the third person and not the appellant.it was submitted that the prosecution only narrated facts of the alternative charge of handling stolen property to which the accused /appellant responded that facts were correct yet the alternative charge was never read out to the accused person and that neither was he convicted of the same hence it is not evident on record whether he understood the facts. reliance was placed on the case of Republic v Yosanami Egalu & others [1965]9 EA 65.

10. Counsel submitted further that there is no evidence that the trial magistrate explained to the appellant the consequences of the admission of the offence hence the appeal against conviction and sentence that followed should be allowed.

11. Opposing the appeal, Mr. Okachi Senor Principal Prosecution Counsel or the Respondent made oral submissions at the hearing of the appeal on 16/9/2020 contending that the appeal has no merit. Counsel submitted that the plea was unequivocal as the language of the court used and which the appellant said he understood was English and that he admitted the charge. Further, that the appellant mitigated and the sentence imposed was lenient and lawful hence this court should uphold the lower court’s decision.

ANALYSIS & DETERMINATION

12. Section 348 of the Criminal Procedure Code bars appeals from subordinate courts where an accused was convicted upon a plea of guilty except on the extent and legality of sentence. The said section provides:

“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent and legality of the sentence.”

9. In Olelv Republic [1989] KLR 444, the court held:

“Where a plea is unequivocal, an appeal against conviction does not lie. Section 348 of the Criminal Procedure Code (cap 75) does not merely limit the right of appeal in such cases but bars it completely.”

13. A reading of the above section and authority shows that the appellant is barred from challenging the conviction and his only recourse would therefore be to challenge the extent or legality of the sentence imposed on him by the trial court. However, Courts have held that a conviction on a guilty plea can be challenged where the plea was not unequivocal.

14. Therefore, in the instant case, conviction having been on a plea of guilty, the only way this Court can address itself on the issue is to determine whether the plea recorded by the lower court was equivocal which would render the conviction of the appellant unlawful.

15. This being a first appellate court, iam required to reexamine afresh the evidence (facts and exhibits) presented before the trial court and evaluate the same in order to determine whether the proper procedure was followed in recording the plea before the appellant was convicted (see Okeno vs Republic [1972] EA 32). Nonetheless, for purposes of this appeal, no evidence was adduced by the prosecution witnesses as the appellant pleaded guilty to the charges and was convicted on his own plea of guilty. However, even where a guilty plea has been recorded, the appellate court is still obligated to scrutinize the proceedings taken during plea taking with a view to ascertain whether or not the guilty plea was unequivocal and if the proceedings were properly taken.

16. The correct manner of recording a plea of guilty and the steps to be followed by the court was stated in the locus classicus case of Adan V Republic, (1973) EA 446where Spry V.P. laid down the procedure at page 446 as follows:

“When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change of plea to "not guilty" and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence.. The statement of facts and the accused’s reply must of course be recorded.”

17. This case was followed by Kariuki V R(1984) 809 where their Lordships reiterated those steps as follows:

a. the trial magistrate or Judge should read and explain to the accused the charge and all the ingredients in the accused’s language or in a language he understands;

b. he should then record accused’s own words and if they are an admission, a plea of guilty should be recorded;

c. the prosecution may then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts;

d. if the accused does not agree to the facts or raises any question of his guilt his reply must be recorded and a change of plea entered but if there is no change of plea, a conviction should be recorded together with a statement of the facts relevant to sentence and the accused reply.

See also Korir v. Republic [2006] E.A. 124

18. My task in this appeal is therefore to determine whether the above procedure was followed in the trial court. For this reason, and having reproduced the charges as framed in the charge sheet dated 24th December 2019, I will reproduce verbatim the facts of the case as read to the appellant in the English language in trial court and his response in English thereof. The facts as stated by the court prosecutor Mr. Mayaba were that:

“Facts are that on 22. 12. 2029 complainant was asleep in her house at Ajigo market. She forgot to lock her house from inside with padlock. Someone opened it from outside and stole bag with clothes, personal documents, shoes, identity card and kshs 1,180. The complainant woke up and realized her loss. She reported to Lwala Kondele Police Station and told her neighbours. In the course of the day, complainant receive information thtaher bag had been traced in Ajigo market where accused was arrested having possession of the bag. He was then charged. Recovered items were:

1 black bag H.P Power –PEX1

Assorted clothes-PEx 2

Personal Documents- PEx 3

1 pair of sandals-PEx 4

ACCUSED: The facts are correct

The accused is convicted on own plea of guilt

Pros: No records

Mitigation:

I pray for forgiveness. Iam supposed to go to School. I pray for a non-custodial sentence

Court:

I have considered the offence and mitigation and I sentence as follows:

Burgglary

The accused is convicted to jail term of 2 years

Stealing

The accused is convicted to jail term of 2 years .

The senetnecs will run concurrently

R/A 14 days

Signed

24/12/2019. ”

19. The appellant was asked to respond to the facts and he stated: “facts are correct.”

20. Guided by the legal principles on how a plea of guilty and conviction of an accused person should be recorded by the trial court as set out in the case of Adan vs. Republic (1973) EA 445, I find that the trial magistrate met the requirements for recording guilty plea.

21. The learned trial magistrate recorded what the appellant said in response to the charge and when facts were read to him, he admitted those facts to be true thus the conviction on his own plea of guilty.

22. However, there is a contention that the facts as read out and admitted did not disclose the offence of burglary as they were read in the third person and that the actual time of committing the offence was not disclosed in the facts to establish the offence of burglary which must be committed at night.

23. The appellant also contended that he was not warned of the consequences of pleading guilty to the offence. However, I find no substance in this allegation as the offence charged was not a capital offence or an offence that carried long term sentence like in the case of defilement to warrant such warnings.

24. On whether the facts as read out and admitted by the appellant disclosed the offence of burglary, The Appellant was charged with the offence of Burglary C/S 304 (2) and stealing contrary to section 279(6) of the Penal Code. The said Section provides:

“If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years.”

25. The charge was read out in th English language and that is the only language that is indicated on record therefor I find no reason to doubt the trial court’s appreciation of which language the appellant understood as he has not told this court that he did not understand the English language used by the trial court. I dismiss the allegation that the plea was taken in language that the appellant did not understand.

26. However, in a charge of burglary, the facts must clearly disclose that the offence took place at night. The court is not supposed to interpret or infer the facts as was in this case where the prosecutor only said the complainant went to sleep and forgot to lock the door. The facts do not even disclose the name of the complainant. In the absence of proof of the exact time the offence the Appellant had been charged with occurred, this court is unable to conclude that the offence of burglary had been committed and proved beyond reasonable doubt from the facts read out to the appellant

27. The fact that the Appellant had the unnamed complainant’s bag containing assorted items was not proof of burglary.

28. This court finds that the Prosecution did not, from the facts read out and admitted by the appellant, prove the charge of burglary and in this regard, the Learned Trial Magistrate therefore erred in convicting the Appellant on the said charges.

29. From the charge sheet, the offences are alleged to have been committed on 22/12/2019 but the facts did not establish the actual time of commission whether at night as required in section 304(2) of the Penal Code. The charge sheet also shows that the appellant was arrested on 22/12/2019 and in the alternative charge of handling stolen goods, the appellant was found in possession of some of the alleged stolen items. In my humble view, the alternative charge of handling stolen goods was therefore a reasonable charge which the trial court could have considered as the facts in the main count did not disclose the offence of burglary. However, there was no such consideration of the alternative charge which was relevant.

30. This court has power to re-evaluate the evidence and convict the Appellant on the alternative charge.

31. In considering this alternative charge, this court takes into account the events of 22/12/2019 when the Appellant was said to have been arrested with PW 1’s items. However, since the facts did not disclose the charge of burglary, the trial court should have rejected the plea of guilty on the first count and asked the appellant to plead to the alternative count of handling stolen goods which she did not.

32. For the above reasons, I need not delve into the sentence imposed and whether it was harsh or excessive as the trial magistrate in fact convicted the appellant to jail not sentencing him to the respective jail terms.

33. Accordingly, I hereby find this appeal merited. I allow the appeal against conviction and sentence imposed on the appellant herein. I quash the appellant’s conviction and set aside the two years prison sentence imposed.

34. I would have ordered for the retrial of the appellant but he has served nearly nine months imprisonment of the 2 years concurrent sentence imposed.

35. The principles governing whether or not a retrial should be ordered were enunciated by the Court of Appeal of East Africa in the case of Fatehali Manji v Republic [1966] EA 343 as follows:

“In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause injustice to the accused person.”

36. 31. In Mwangi v Republic [1983] KLR 522 the Court of Appeal held thus:

“We are aware that a retrial should not be ordered unless the appellate court is of the opinion, that on a proper consideration of the admissible, or potentially admissible evidence, a conviction might result. In our view, there was evidence on record which might support the conviction of the appellant.”

37. In the instant case, as earlier stated, as the appellant has served nearly half of the two years’ imprisonment, it would not be in the interest of justice to order for a retrial. Therefore, unless otherwise lawfully held, I hereby order that the appellant is hereby set at liberty forthwith.

38. On the whole, the appeal herein is allowed. The conviction of the appellant on an equivocal plea is hereby quashed and sentence thereof set aside. Unless otherwise lawfully held, the appellant GEORGE OMULLO TINGA is hereby set at liberty.

Orders accordingly.

Dated, signed and delivered at Siaya this 21st Day of September, 2020

R.E. ABURILI

JUDGE

In the presence of:

Mr. Okachi SPPC for Respondent

Mr. Mirembe for Appellant

CA: Brenda